Sometimes I actually learn something in law school. Take yesterday for example.
In my Property class, we were discussing Illinois common law as it relates to non-married couples. What if a romantic couple had lived together for 10 years, never officially got married, and then one of them dies? What happens to their joint property? Say they bought living room furnitute together, who gets to keep it? What if they had been prepared for this and actually had official contracts drawn up to dictate what they wanted to happen to their property in this specific situation?
Amazingly enough, in Illinois, the courts would not recognize their contracts. That’s right, they would completely ignore the legal rights of the non-married co-habitating couple. Why would they do that? The logic is that if they honored the agreement, than there would be no incentive for any couple to get married. So the court does NOT recognize any agreement made been co-habitating couples who are not married.
What is bizzare though, is that the court DOES recognize contracts between people who are not in a sexual relationship. So, that means if those two people were roomates, instead of an official couple, than the court would respect the contract that they made. Did you follow that? Because a couple has sex and live together, their contracts are void. If they didn’t have sex, than the contract would not be void. Roommates can have contracts like that, couples who have sex but aren’t married cannot.
Does that make sense to you? Reminder: The purpose is to encourage those couples to officially get married.
OK, that can somewhat be understood, right? But what if that couple is legally not allowed to get married?
I think you know where I am going with this: Same-sex couples.
See if you can understand this. A same-sex couple could be together for 30 years, sharing a life as any couple would. They draw up contracts to allocate what happens to their belongings and settle affairs in case something happens to one of them. In Illinois, those contracts are void. Why? To promote marriage of course. But, oops, they are not allowed to get married. Does that seem right? The illogical nature of it is easiest to understand in the abstract:
The law punishes conduct B, because it wants to encourage conduct A. However, the law does not allow conduct A. So in essence the law promotes a new conduct C…none of the above.
What this means is that the law specifically encourages same-sex couples to avoid monogamy and discourages them from entering stable relationships.